ARREST AND DETENTION OF SENATOR STUART SYVRET AND ASSOCIATED MATTERS

20 members of the States of Jersey Assembly voted for (pour) this proposition & 25 against (contre)

This at least is a measure of the move towards democracy on OUR island.

I'm saddened, though not surprised, to note that the block vote of the Connétables was against (contre) with the exception of Simon Crowcroft Connétable of St Helier. As always, totalling 12 votes, mocking the whole democratic process.

Who voted for & against at the bottom of this post.

STATES OF JERSEY

ARREST AND DETENTION OF
SENATOR STUART SYVRET AND
ASSOCIATED MATTERS

Lodged au Greffe on 16th April 2009
by Deputy G.P. Southern of St. Helier

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion -

(a) to express their concern in respect of the apparent interference in the
communications between elected representatives and their
constituents which arises from the arrest and detention of Senator
Stuart Syvret on 6th April 2009;

(b) to further express their concern in respect of the suppressing effect of
such actions upon other elected representatives, and members of the
public;

(c) to further express their concern in respect of the searching of
premises, without a search warrant, and the consequent taking of
communications between members of the public and their elected
representatives;

(d) to request the Minister for Home Affairs to make an urgent statement
concerning the decisions, whether operational or political, taken by
the States of Jersey Police and the Minister in relation to the arrest and
detention of Senator Stuart Syvret;

(e) to request the Privileges and Procedures Committee to make an urgent
statement explaining the extent of the protection offered to States
members, and their constituents, by parliamentary privilege.

DEPUTY G.P. SOUTHERN OF ST. HELIER

REPORT

Emergency States Sitting

This is an urgent proposition, dealing as it does with matters of immense gravity that
go to the very heart of free, functioning democracy in Jersey.

This proposition most certainly amounts to, as standing order 26 (7) says, “a matter of
such urgency and importance that it would be prejudicial to Jersey to delay its debate.”

The States Assembly will, therefore, be asked at the beginning of the requisitioned
meeting, to agree – as described in standing order 26(7) – to set aside the minimum
lodging period in respect of this proposition.

The facts

At approximately 9.00 a.m., on Monday 6th April 2009, Senator Stuart Syvret, the
senior Senator of the States Assembly, was arrested by the States of Jersey Police as
he stepped from the door of his home. The arrest took place in the presence of
approximately 8 police officers who were on the scene in 4 police vehicles.

Senator Syvret was told he was under arrest for alleged breaches of the Data
Protection Law, and was, more specifically, later told that the alleged offences related
to material published on his Internet blog.

The Senator’s home was then searched, although no search warrant was issued for the
alleged offence under Schedule 9, Article 50, Data Protection (Jersey) Law 2005.

Schedule 9 of the Law states –

“1 Interpretation

In this Part –

“occupier” of premises includes a person in charge of a vessel, vehicle,
aircraft or hovercraft;

“premises” includes a vessel, vehicle, aircraft or hovercraft;

“warrant” means warrant issued under this Schedule.

2 Entry and search

(1) If the Bailiff or a Jurat is satisfied by information on oath supplied by the
Commissioner that there are reasonable grounds for suspecting –

(a) that a data controller has contravened or is contravening any of the
data protection principles; or

(b) that an offence under this Law has been or is being committed,

and that evidence of the contravention or of the commission of the
offence is to be found on any premises specified in the information, the
Bailiff or Jurat may issue a warrant to the Commissioner.


(2) The Bailiff or a Jurat shall not issue a warrant in respect of any personal
data processed for the special purposes unless a determination by the
Commissioner under Article 45 with respect to those data has taken
effect.

(3) A warrant may authorize the Commissioner or any of the
Commissioner’s staff at any time within 7 days of the date of the warrant
to enter the premises, to search them, to inspect, examine, operate and test
any equipment found there which is used or intended to be used for the
processing of personal data and to inspect and seize any documents or
other material found there which may be such evidence as is mentioned in
sub-paragraph (1).

3 Additional conditions for issue of warrant

(1) The Bailiff or a Jurat shall not issue a warrant unless satisfied –

(a) that the Commissioner has given 7 days’ notice in writing to the
occupier of the premises in question demanding access to the
premises;

(b) that either access was demanded at a reasonable hour and was
unreasonably refused or although entry to the premises was
granted, the occupier unreasonably refused to comply with a
request by the Commissioner or any of the Commissioner’s staff to
permit the Commissioner or the member of staff to do any of the
things referred to in paragraph 2(3); and

(c) that the occupier, has, after the refusal, been notified by the
Commissioner of the application for the warrant and has had an
opportunity of being heard by the Bailiff or Jurat on the question
whether or not it should be issued.

(2) Sub-paragraph (1) shall not apply if the Bailiff or Jurat is satisfied that the
case is one of urgency or that compliance with that sub-paragraph would
defeat the object of the entry.”

The police instead used powers under Article 29 of the Police Procedures and
Criminal Evidence (Jersey) Law 2003.

Article 29 of the Law states –

“29 Search upon arrest

(1) A police officer may search an arrested person, in any case where the
person to be searched has been arrested at a place other than a police
station, if the police officer has reasonable grounds for believing that the
arrested person may present a danger to himself or herself or others.

(2) Subject to paragraphs (3) to (5), a police officer shall also have power in
that case –

(a) to search the arrested person for anything which the person might
use to assist him or her to escape from lawful custody or which
might be evidence relating to an offence; and

(b) to enter and search any premises in which the person was when
arrested or immediately before the person was arrested for
evidence relating to the offence for which he or she has been
arrested.

(3) The power to search conferred by paragraph (2) is only a power to search
to the extent that is reasonably required for the purpose of discovering
any such thing or any such evidence.

(4) The powers conferred by this Article to search a person shall not be
construed as authorizing a police officer to require a person to remove
any of his or her clothing in public other than an outer coat, jacket, gloves
or headgear, but shall authorize a search of a person’s mouth.

(5) A police officer may not search a person in the exercise of the powers
conferred by paragraph (2)(a) unless the officer has reasonable grounds
for believing that the person to be searched may have concealed on him
or her anything for which a search is permitted under that sub-paragraph.

(6) A police officer may not search premises in the exercise of the power
conferred by paragraph (2)(b) unless the officer has reasonable grounds
for believing that there is evidence on the premises for which a search is
permitted under that sub-paragraph.

(7) In so far as the power of search conferred by paragraph (2)(b) relates to
premises consisting of 2 or more separate dwellings, it shall be limited to
a power to search –

(a) any dwelling in which the arrest took place or in which the person
arrested was immediately before his or her arrest; and

(b) any parts of the premises which the occupier of that dwelling uses
in common with the occupiers of any other dwellings comprised in
the premises.

(8) A police officer searching a person in the exercise of the power conferred
by paragraph (1) may seize and retain anything the officer finds, if the
officer has reasonable grounds for believing that the person searched
might use it to cause physical injury to himself or herself or to any other
person.

(9) A police officer searching a person in the exercise of the powers
conferred by paragraph (2)(a) may seize and retain anything the officer
finds, other than items subject to legal privilege, if the officer has
reasonable grounds for believing –

(a) that that person might use it to assist him or her to escape from
lawful custody; or

(b) that it is evidence of an offence or has been obtained in
consequence of the commission of an offence.

(10) Nothing in this Article shall be taken to affect the power conferred by
Article 39 of the Terrorism (Jersey) Law 2002.”

The implications

The manner of Senator Syvret’s arrest, the search of his home without a warrant, and
the taking away of some of his possessions and the possessions of others residing in
the premises raises serious concerns for democracy in Jersey, Jersey’s external
reputation, Parliamentary Privilege, the Rule of Law, and the accountability, control,
and judgement of the police and judicial authorities.

For the avoidance of doubt, this proposition is not about –

1. Senator Syvret as an individual;
2. the merits or otherwise of any allegations or charges being made or brought
against him by the police; or
3. the content of his blog.

The proposition, however, is about –

1. The reputation of Jersey as a democracy

It is difficult to describe the damage to Jersey’s reputation – even its very
appearance as a functioning democracy – if Laws are used against members of
the legislature and their constituents, in ways that appear to be
disproportionate and of dubious validity.

The arrest and detention of a member of the legislature, and the searching of
his home – without a search warrant – can only make Jersey appear as some
kind of democratically bankrupt republic like Zimbabwe.

2. Parliamentary Privilege

The rights and privileges of parliamentarians have been the subject of a long
and protracted battle over the last 400 years and should not be discarded
lightly.

What is of profound concern is that any members of the Jersey parliament can
be arrested in a patently excessive manner – and their home be searched by a
large number of police officers – merely for publishing information which
they believe to be in the public interest.

Of grave concern is that some of the material seized at Senator Syvret’s home
not only concerned privileged communications between him and his
constituents, but also similar privileged communications between another
States Member and their constituents.

The information and equipment seized by the police included documents and
computers owned by the Senator, as well as his Security ID fob for access to
the States network, thereby giving the police access to communications
between other States Members on a wide variety of issues, including the
suspension of the Chief of Police and other allegations of police misconduct.
In addition, computer equipment belonging to other family members not
connected with the police enquiries was also removed for examination.

The police action can only be viewed as a direct threat to the people of Jersey
and the democratic right of the public to communicate with their political
representatives and for those representatives to fearlessly fight for their
constituents.

A number of other States members now feel threatened and constrained in
their work as elected representatives of the people of Jersey, as a direct
consequence of the actions against the Senator.

If States members can have their communications interfered with and can be
arrested and detained in a police cell for 7 hours, whilst their home is
searched – without a search warrant – then Jersey is not a functioning
democracy; instead members will always feel threatened by the prospect of
such excessive and abusive actions against them.

The anger from all sides of the House of Commons in the United Kingdom at
the arrest of Damien Green M.P., and the searching of his office, illustrates
just how diligently members of a legislature guard their right to be free from
persecutions and trivial harassments so they may speak and act for their
constituents without fear.

If members of the States of Jersey fail to express similar concerns, the damage
to our reputation will be colossal.

3. The misuse of the Police Procedures and Criminal Evidence (Jersey) Law
2003

Senator Syvret was told he was under arrest for alleged breaches of the Data
Protection Law, and was, more specifically, later told that the alleged offences
related to material published on his Internet blog. Information which the
Senator believes is in the public interest.

If the Senator was allegedly in breach of the Data Protection (Jersey) Law
2005, which has specific provision in Article 50, Schedule 9, for the search of
premises and the seizure of material, why were these provisions not used
instead of Article 29 of the Police Procedures and Criminal Evidence (Jersey)
Law 2003? Especially as the raid was obviously a pre-planned operation on
Senator Syvret’s home. Why was Senator Syvret not merely invited to attend
the Police Station?

4. Double standards

Why have the police gone to such extraordinary measures in this case when
there have been other well-documented breaches of the Data Protection Law
by other States Members – breaches of no public interest merit – which have
not merited such action?

5. Role of elected and unelected Members of the States and Honorary
System

A further consideration arises which directly affects the credibility of the
Assembly as presently constituted. What was the role of the Bailiff, Deputy
Bailiff, Attorney General or Solicitor General or Minister for Home Affairs in
this affair?

Did the Connétable of the relevant parish know anything of the action against
Senator Syvret? Did the States police undertake such a dramatic action
without any prior consultation or notice to the honorary police in the parish?

Were any of the Connétable’s honorary officers actually involved in the
action?

What role, if any, did the Connétable himself play in the planning or execution
of this policing action in his parish?

Those supporting this proposition believe it to be absolutely vital to Jersey’s
standing as a respectable democracy that the legislature meet as a matter of
great urgency in order to debate the implications of the arrest and detention of
Senator Stuart Syvret.

The Assembly must debate these issues in order to restore the public’s
confidence in their ability to communicate freely and in confidence with their
elected representatives.

The Minister for Home Affairs must be asked for an urgent statement concerning the
decisions, whether operational or political, taken by the States of Jersey Police and the
Minister in relation to the arrest and detention of Senator Stuart Syvret.

The Chairman of the Privileges and Procedures Committee must also be asked for an
urgent statement outlining the extent of the protection offered to States members and
their constituents by their parliamentary privilege.

Both democracy and the rule of law have been shaken by recent events.

The Assembly must exhibit the appropriate leadership.

Financial and manpower statement

No financial or manpower issues arise from this proposition.


STATES OF JERSEY VOTE on the 21st APRIL 2009:

Arrest and detention of Senator Stuart Syvret and associated matters (subject to the reduction of the minimum lodging period).Suspension of Standing Order 26(7) to reduce lodging period and allow P.60 to be debated 21 April 2009

Proposition:


Arrest and detention of Senator Stuart Syvret and associated matters (subject to the reduction of the minimum lodging period).


POUR: 20 CONTRE: 25 ABSTAINED: 1 ILL: 1 EN DEFAUT: 1 EXCUSED ATTENDANCE: 5


Senator Stuart Syvret


POUR


Senator Terence Augustine Le Sueur


CONTRE


Senator Paul Francis Routier


CONTRE


Senator Philip Francis Cyril Ozouf


CONTRE


Senator Terence John Le Main


CONTRE


Senator Ben Edward Shenton


EN DEFAUT


Senator Frederick Ellyer Cohen


POUR


Senator James Leslie Perchard


CONTRE


Senator Alan Breckon


POUR


Senator Sarah Craig Ferguson


CONTRE


Senator Alan John Henry Maclean


CONTRE


Senator Bryan Ian Le Marquand


ABSTAINED


Connétable Kenneth Priaulx Vibert


EXCUSED ATTENDANCE


Connétable Alan Simon Crowcroft


POUR


Connétable John Le Sueur Gallichan


EXCUSED ATTENDANCE


Connétable Daniel Joseph Murphy


EXCUSED ATTENDANCE


Connétable Michael Keith Jackson


CONTRE


Connétable Silvanus Arthur Yates


CONTRE


Connétable Graeme Frank Butcher


CONTRE


Connétable Peter Frederick Maurice Hanning


CONTRE


Connétable Leonard Norman


CONTRE


Connétable John Martin Refault


CONTRE


Connétable Deidre Wendy Mezbourian


CONTRE


Connétable Juliette Gallichan


CONTRE


Deputy Robert Charles Duhamel


POUR


Deputy Frederick John Hill, B.E.M.


POUR


Deputy Roy George Le Hérissier


POUR


Deputy John Benjamin Fox


CONTRE


Deputy Judith Ann Martin


ILL


Deputy Geoffrey Peter Southern


POUR


Deputy James Gordon Reed


CONTRE


Deputy Carolyn Fiona Labey


EXCUSED ATTENDANCE


Deputy Collin Hedley Egré


CONTRE


Deputy Jacqueline Ann Hilton


CONTRE


Deputy Paul Vincent Francis Le Claire


POUR


Deputy John Alexander Nicholas Le Fondré


CONTRE


Deputy Anne Enid Pryke


CONTRE


Deputy Sean Power


EXCUSED ATTENDANCE


Deputy Shona Pitman


POUR


Deputy Kevin Charles Lewis


CONTRE


Deputy Ian Joseph Gorst


POUR


Deputy Philip John Rondel


POUR


Deputy Montfort Tadier


POUR


Deputy Angela Elizabeth Jeune


CONTRE


Deputy Daniel John Arabin Wimberley


POUR


Deputy Trevor Mark Pitman


POUR


Deputy Anne Teresa Dupre


POUR


Deputy Edward James Noel


CONTRE


Deputy Tracey Anne Vallois


POUR


Deputy Michael Roderick Higgins


POUR


Deputy Andrew Kenneth Francis Green M.B.E.


CONTRE


Deputy Deborah Jane De Sousa


POUR


Deputy Jeremy Martin Maçon


POUR